Daily Archives: March 20, 2017

Blog author, WMU-Cooley Professor Brendan Beery, starts the discussion regarding the Supreme Court nominee Judge Neil Gorsuch hearing. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media. LISTEN to Professor Brendan Beery as he speaks with WILS Radio about SCOTUS nominee Neil Gorsuch.

The Senate hearing begins today on the nomination of Neil Gorsuch for a seat on the Supreme Court. He will offer few, if any, answers about specific cases or issues. So look for senators to probe deeply into his broad approach to legal problems.

Conservatives will seek assurances that Judge Gorsuch is a reliable “originalist,” meaning that he anchors constitutional meaning to those times when the Constitution’s language was first adopted. Conservatives will also seek assurances that Gorsuch is a “textualist,” meaning that he adheres to a narrow view about words like “liberty” and “equal protection” in the Constitution. A textualist is less likely to seek out the broad underlying principles that animated constitutional rules, focusing instead on the narrowest meaning of those rules.

Liberals, on the other hand, will seek assurances that Judge Gorsuch is at least open to the idea of “the living Constitution” reflected in the organic view of the Constitution. Under this view, the broad language of the Constitution – again, words like “liberty” and “equal protection” – are seen as an invitation to apply evolving standards over time. Liberals will also be asking about broad notions of liberty and equality that animate broader constitutional protections for groups like women and the LGBT community. These broader principles also undergird constitutional protections for more controversial practices, like abortion, marital freedom, and private sexual conduct.

If he is true to the conservative leanings of the people supporting his nomination most vociferously, Judge Gorsuch will likely sympathize most overtly with notions of originalism and textualism.

If Judge Gorsuch is confirmed, the Court will revert to the status quo ante – meaning largely the same position, ideologically, where it stood before the death of Justice Antonin Scalia. The three oldest justices on the Supreme Court are two liberals and the Court’s swing vote, and were President Trump to replace one of those three, we would see an ideological shift on the Court.